"The submission we made is that there was foresight, that (when) a person (is) standing behind a door in a small cubicle, if you fire four shots into that, a person will die,"
"Dolus eventualis" in spotlight again as South Africacourt considers Pistorius' fate
(Reuters)
That South African Olympic and Paralympic athlete Oscar Pistorius killed his girlfriend Reeva Steenkamp when he fired four shots through a locked toilet in his home is beyond doubt.
But
whether he will be heading back to jail for a long spell or enjoying
the relative comfort of house arrest will depend on how the Supreme
Court of Appeal interprets the legal principle known by the Latin words "dolus eventualis".
It
refers to whether a person foresees the possibility that his or her
action will cause death but carries on regardless. It was the crucial
element in High Court Judge Thokozile Masipa's decision in the orginal trial to convict Pistorius of culpable homicide instead of the more serious offence of murder.
The previously arcane phrase - which means "eventual fraud"
- became ubiquitous during the seven-month trial, from conversations to
news columns. When the state opened its appeal on Tuesday seeking to
change the conviction to murder, one media commentator even called it "Dolus Eventualis Day".
Judge
Masipa said prosecutors had failed to prove Pistorius intended to kill
Steenkamp, a law graduate turned model, when he fired through the toilet
door at his house in an upmarket suburb of Pretoria in the early hours
of Valentine's Day, 2013.
Pistorius had argued
that he thought an intruder was in the toilet and that he assumed his
girlfriend was safely in bed and out of firing range, a version the
state has rejected.
"The submission we made is
that there was foresight, that (when) a person (is) standing behind a
door in a small cubicle, if you fire four shots into that, a person will
die," prosecutor Gerrie Nel told the Supreme Court, opening the challenge on Tuesday.
The
prison service released Pistorius on parole last month after he had
served about a year of a five-year sentence for culpable homicide, the
equivalent of manslaughter.
Legal analysts say the
Supreme Court could convict Pistorius of murder itself, which has a
minimum 15-year sentence, order a retrial or throw out the state's
appeal.
LEGAL CONCEPT WITH LATIN NAME
The
working definition of dolus eventualis in South African law, taken from
the 1963 case of State vs. Malinga, suggests that the intent could
apply equally with regard to the intruder Pistorius says he believed was
behind the door.
Pistorius was not present at the
Supreme Court hearing, a stark contrast with last year's sensational
trial during which the track star frequently sobbed uncontrollably as
graphic details of Steenkamp's death emerged.
The
shooting and trial marked a sensational fall from grace for Pistorius,
whose lower legs were amputated when he was a baby but who went on to
become a global sporting hero, dubbed "Blade Runner" because of the
prosthetic blades he used to compete.
"This will be a trend-setting case, it will definitely be precedent," said advocate Inez Bezuidenhout, director of the University of the Free State's law clinic.
During
a terse exchange on Tuesday, Appeal's Court Justice Eric Leach told
Pistorius' lead defence counsel Barry Roux he believed Masipa's analysis
of dolus eventualis "seems to be wrong".
Roux, in turn, insisted Masipa had not made any errors in law, but "may or may not have committed factual errors."
at the verdict by Judge Masipa could set a
bad legal precedent in a country with one of the highest crime rates in
the world.
"Had the judgement by Judge Masipa stood, that would have had a detrimental impact in my view on the criminal justice system," legal analyst Brenda Wardle said.
The Supreme Court of Appeal is expected to rule before the end of the year.
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